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New legislation would imperil Texas anti-SLAPP law

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UPDATE 6/21/2019: On June 2, 2019, Texas Governor Greg Abbott signed HB 2730 into law. The bill makes several changes to the Texas Citizens Participation Act but leaves intact many core elements of the Act that opponents had targeted.

The adopted legislation does not include some of the most alarming elements from the first draft of the bill. Lawmakers agreed to abandon an amendment that would have allowed parties filing meritless cases to avoid paying a defendant’s legal expenses by dropping a lawsuit prior to a hearing. Advocates also persuaded legislators to expand the definition of “public interest” matters that would be covered by the TCPA and ease requirements on those invoking the anti-SLAPP law.

The new law also constrains anti-SLAPP protections in several ways. Whereas the original TCPA allowed defendants to seek dismissal for issues broadly “related to” the right of free speech, petition, or association, the new statute requires the claim to be more narrowly “based on” a violation of one of those rights. Legislators abandoned anti-SLAPP protections for speech regarding trade secrets or non-compete agreements, potentially allowing employers to intimidate whistleblowers with employment-related suits.

The new law goes into effect September 1.

The 2019 session of the Texas legislature is currently considering legislation (House Bill 2730 and Senate Bill 2162) that could threaten the public’s right to speak freely on public issues. The legislation would make it easier to drag a media outlet, journalist or outspoken citizen into court to defend against harassing, meritless lawsuits.

The bills proposed in Texas would undermine the Texas Citizen Participation Act (TCPA), which the state legislature enacted in 2011 and quickly became a model for legislation in other states. The TCPA allows the courts to quickly dismiss meritless defamation and other lawsuits designed to chill speech. Such meritless claims – so-called Strategic Lawsuits Against Public Participation, or SLAPP suits — are routinely filed by people with deep pockets not to ultimately succeed in the courts but to run up legal costs in order to intimidate or chill speech.

Unflinching journalism is essential to expose wrongdoing and hold public officials to account. A free press and accurate news reporting depend upon journalists to identify, investigate and report out stories without concern that the subjects in the story could drain their newsroom out of existence through a meritless court case.

While press freedom advocates are looking for ways to strengthen anti-SLAPP laws in several states, in Texas an organized effort appears underway to undermine one of the models for anti-SLAPP laws across the nation.

HB 2730 and SB 2162 threaten the Texas anti-SLAPP law

As recently as 2018 the Texas Supreme Court noted that the Texas Citizen Participation Act holds an “unique role in protecting the democratic process that allows our state to function.” State ex rel. Best v. Harper, 562 S.W.3d 1, 19 (Tex. 2018).

For example, House Bill 2730 and SB 2162 would allow the entity accused of filing a meritless lawsuit to drop their case just days before a hearing. This effectively allows an entity to sue a media company for defamation, receive a hearing date, and then drop the lawsuit days before a hearing to avoid a bad ruling and the cost of the defendant’s legal fees.

The bills would also remove clearly articulated categories of protected speech relating to matters of public concern from the Texas anti-SLAPP law. The legislation drops the definitions of those categories of public speech and deletes anti-SLAPP protections for communications between parties on matters of public concern.

This would eliminate clear protection under TCPA for meritless defamation lawsuits. It would also eliminate explicit protection under TCPA for private conversations that contribute to public understanding of news events.

The bills would also make it easier to identify an anonymous speaker by exempting online commenters from TCPA protections and subjecting such commenters to being identified through the discovery process.

Several procedural changes would aid a plaintiff bringing a case against a media outlet. For example, the bills create deadlines for a defendant to invoke the anti-SLAPP statute, but allows a plaintiff unlimited time to reply. And perhaps most egregiously, the legislation allows a plaintiff to avoid paying a defendant’s legal fees by dropping their case at least three days before a hearing on the defendant’s anti-SLAPP motion.

About anti-SLAPP laws

Anti-SLAPP laws are powerful tools to protect free speech on public matters, so having a broad, efficient and consequential anti-SLAPP law in place is vital to journalism and accurate, credible news reporting.

An Anti-SLAPP law acts as a gatekeeper, allowing a case to be quickly dismissed (before legal bills mount) if a judge finds no merit to the plaintiff’s arguments.

Anti-SLAPP laws are available to everyone. Anti-SLAPP laws, including the TCPA, protect the conduct (protected speech), not individuals and entities. While these laws are primarily intended to help those with fewer resources defend against deep-pocketed plaintiffs, there are no income or other qualifications to meet to invoke anti-SLAPP. Donald Trump and Exxon have successfully invoked the TCPA to defeat lawsuits.

Strong anti-SLAPP laws apply to speech on matters before a governmental body, topics of public interest, or even more broadly any speech (public or private) on public matters. The TCPA explicitly protects speech on public matters in a variety of contexts, including communications between two parties, which is important for journalism.

They allow a defendant to efficiently resolve a legal case before racking up legal fees defending against a meritless case.

And fee recovery provisions provide monetary consequences for bringing meritless defamation or similar cases. A plaintiff who brings a meritless case that courts dismiss under an anti-SLAPP law may be ordered to reimburse the defendant’s legal costs.

Anti-SLAPP cases do not significantly burden the courts, as some have charged. TCPA cases represent a fraction of the overall caseload. From 2011 to 2018, of the 83,717 appeals court opinions issued from 2011 through 2018, 0.32 percent (270) related to the TCPA. During that same eight-year stretch, only 15 of the Texas Supreme Court’s opinions dealt with the TCPA.

(Similarly, California’s broad anti-SLAPP law also has a minimal impact on courts. California’s Anti-SLAPP law also faced criticism that it was too broad and adversely affected the judicial system, one analysis showed anti-SLAPP motions in trial courts accounted for only 0.04 percent of all motions filed between 2014 and 2018, and only 1.2 percent of all appeals over the same period.)

TCPA is a model for other states across the country, and significant changes to the TCPA harm efforts to strengthen First Amendment protections around the country.

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